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American Morning

McVeigh Expected to Ask For Stay of Execution

Aired May 30, 2001 - 11:02   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
STEPHEN FRAZIER, CNN ANCHOR: Let's begin with the latest legal maneuvers for Oklahoma City bomber Timothy McVeigh. His attorneys say they expect him to give the go-ahead for a motion to seek a delay of his June 11 execution. They plan to meet tomorrow with McVeigh at the federal prison in Terre Haute, Indiana.

Originally, you'll recall, McVeigh was to be put to death May 16. But his execution was delayed after the FBI uncovered documents that had never been turned over to McVeigh's defense team.

The defense team says they need more time to wade through the thousands of pages of FBI documents. Attorney General John Ashcroft, though, has said he will order no further delays.

So, how much weight does Ashcroft's declaration really carry? Joining us from Washington to untangle this legal web is CNN legal analyst Roger Cossack. Roger, thanks for joining us this morning.

ROGER COSSACK, CNN LEGAL ANALYST: Hi, Stephen.

FRAZIER: I understand the legal team has a number of options, three or four?

COSSACK: That's correct. Obviously, the first option, and the overall umbrella option, is to go into court and say we need more time. And the three or four is the different kinds of reasons that they may need more time.

First of all, Attorney General Ashcroft has indicated that he is not going to agree to more time. So the question then becomes, will a court, a judge, give the defense team as much time or more time to go through this pages?

Now, what can they say they need? They could say, one, there's several thousand pages. We just haven't had the time. We got most of this material just a few weeks ago. And to do a competent job, we need more time. Judge, give us another month. Give us another two months, or whatever time they may ask for.

Two, they may say these papers are showing things that we didn't know before. There is evidence that must be investigated, that we didn't have opportunity to investigate. That's another reason that the court might say, "Well, tell us what some of that information is. And we will give you the possibility of more time for doing that." Three, it would be kind of combination of the first, that it just takes us time. "Remember, Judge," they're going to be able to say, "this isn't our fault. My client was scheduled to die May 16. He was prepared to die May 16 when suddenly just a few days before, the FBI on its own came and said, "Oops, we forget to turn over several thousand pages of evidence." So I think that the defense is going to be in a good position to get some extra time from a court.

FRAZIER: Do you think, Roger, that they'd have to ask for a whole new trial on the merits of the case, or could they give that part up knowing that Mr. McVeigh has made statements to journalists since his conviction in which he implicates himself and just say, "We would like, though, some more time to adjust the punishment phase of the trial?"

COSSACK: Stephen, there's two different -- and you actually are 100 percent correct. There's two different things they could be asking for.

They might say, "Judge, we're entitled to a new trial. But we can't even tell you that yet until we get this more time to digest this new information, perhaps investigate some of these witnesses that we didn't know about on our own. And then we will come back to you and say, Judge, we didn't get a fair trial. Give us a new trial."

Now, someone might say, as you point out, but he's already admitted his guilt. Well, he has admitted his guilt. But suppose tomorrow he said, "You know, I'm now saying I wasn't guilty. I'm now saying there was a John Doe 2."

And that's whole other part of issue because he might claim that in fact there was somebody that was actually more involved than he was in this, and that therefore he now can show the jury that he was not the major player, but the minor player, and maybe have them rethink whether or not he should get the death penalty.

Now, look, these are all hypotheticals, things that I'm bringing up. I don't know what their defense lawyers are going to ask for, nor do I know what's in that information that was turned over late. But these are the kinds of things that defense lawyers normally would be looking for.

FRAZIER: Indeed. And then who would have the right to determine the date? Does the attorney general have the last say on this? Or does Judge Matsch actually have priority?

COSSACK: At this stage of the game, it is Judge Matsch who will have the priority that McVeigh is now back in court. The attorney general has indicated that he would not air agree as a representative of the Justice Department, as the head of Justice Department, to any further delays. So now it will be an adversary proceeding.

The government will come in and say, "Judge, no more time is necessary. These documents don't aid or don't show anything. This is just a delay for the sake of delay." The defense is going to come in and say, "Judge," and lay out all these reasons why they think they're entitled to a delay -- or excuse me, that's right -- to a delay. And in fact, they will make their argument. And Judge Matsch will have the final word.

But I would be very surprised if a delay is not granted in this case in light of the fact that the government comes in a rather difficult position of being the one that showed up late with the evidence.

FRAZIER: Indeed. Well, Roger, thank you for walking us through all those possibilities. They're clear now. But I hope there's not a quiz 20 minutes from now.

COSSACK: OK.

FRAZIER: Roger Cossack.

COSSACK: I'll be back.

FRAZIER: All right, great.

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